advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, September 22, 2013

Section 78(5) of the Rajasthan Sales Tax Act, 1994 (for short 'the Act').=The Assistant Commercial Taxes Officer, Bhiwadi had levied penalty in exercise of his powers under Section 78(5) of the Act against the owner of the vehicle who was carrying certain goods of the assessee.- “If one reads sub-section (5) of Section 78 in its entirety with Rule 53 of the 1995 Rules, it is clear that penalty was liable to be imposed for importation of any taxable goods for sale without furnishing a declaration in Form ST 18A completely filled in all respects. The duty to fill and furnish the said Form is imposed on the purchasing dealer. Therefore, Section 78(5) as it stood prior to 22.3.02 imposed penalty if possession or movement of goods took place inter alia in breach of Section 78(2)(a) on "the person in-charge", which included the owner. In this connection it may be noted that sub- section (5) comes after sub-section 4(c) which talks about release of the goods to "the owner of the goods" on his giving of adequate security. It is the owner (importer) who has to fill in the Form ST 18A. It is the owner who is entitled to seek release under Section 78(4) on giving security. It is the owner who is entitled to hearing under Section 78(5) and, therefore, the expression "person in-charge of the goods" under Section 78(5) would include the owner. Moreover, under Section 78(2) the words used are "person in-charge of a vehicle or carrier of goods in movement" whereas the words in Section 78(5) which comes after sub-section (4) refers to "person in-charge of the goods". The words "in movement" do not find place in Section 78(5) and therefore the expression "person in charge of goods" under Section 78(5) was wider than the expression "person in charge of goods in movement" under Section 78(2)(a). Consequently, the expression "person in-charge of the goods" under Section 78(5) who is given an opportunity of being heard in the enquiry would include the "owner of the goods".= "person in-charge of the goods" under the old Section 78(5) is substituted by the words "the owner of the goods or a person authorized in writing by such owner or person in-charge of the goods".- Therefore, we allow this appeal, set aside the order passed by the High Court and restore the order passed by the Assistant Commercial Taxes Officer, Bhiwadi ASSISTANT COMMERCIAL TAXES OFFICER Vs. M/S PAREKH ENTERPRISES .

         published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40817
               IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.8216        OF 2013
               (@ SPECIAL LEAVE PETITION (C) NO.4194 OF 2010)


ASSISTANT COMMERCIAL TAXES OFFICER                APPELLANT(S)

                                   VERSUS

M/S PAREKH ENTERPRISES                            RESPONDENT(S)

                                  O R D E R



1.          Leave granted.


2.          This appeal is directed against the judgment and  order  passed
by the High Court of Judicature for Rajasthan at Jaipur in S.B.  Sales  Tax
Revision Petition  No.110  of  2009,  dated  01.07.2009.  By  the  impugned
judgment and order, the High Court has set aside the penalty levied by  the
Assistant Commercial Taxes Officer, Bhiwadi (Revenue) in exercise of  their
powers under Section 78(5) of the Rajasthan Sales Tax Act, 1994 (for  short
'the Act').

3.          The Assistant Commercial  Taxes  Officer,  Bhiwadi  had  levied penalty in exercise of his powers under Section 78(5) of  the  Act  against the owner of the vehicle who was carrying certain goods  of  the  assessee.
Being aggrieved by the said order, the assessee had carried the  matter  in
further appeal before the various authorities and the same  had  culminated
into a final order passed by the High Court.  The High Court has taken  the
view that the Revenue could not have directed the owner of the  vehicle  to
pay the penalty imposed under Section 78(5) of the Act.

4.          Being aggrieved by the aforesaid  finding  and  the  conclusion
reached by the High Court, the Assistant Commercial Taxes Officer,  Bhiwadi
is before us in this appeal.
The issue raised in this appeal  is  no  more
res integra in view of the judgment of this Court in the case of  Assistant
Commercial Taxes Officers Vs. Bajaj Electricals Limited, reported in (2009)
1 SCC 308.
In the said decision, this Court has observed:
      “If one reads sub-section (5) of Section 78 in its entirety with  Rule
      53 of the 1995 Rules, it is  clear  that  penalty  was  liable  to  be
      imposed  for  importation  of  any  taxable  goods  for  sale  without
      furnishing a declaration in Form  ST  18A  completely  filled  in  all
      respects.   The duty to fill and furnish the said Form is  imposed  on
      the purchasing dealer. Therefore, Section 78(5) as it stood  prior  to
      22.3.02 imposed penalty if possession or movement of goods took  place
      inter alia in breach of Section 78(2)(a) on  "the  person  in-charge",
      which included the owner. In this connection it may be noted that sub-
      section (5) comes after sub-section 4(c) which talks about release  of
      the goods to "the owner of  the  goods"  on  his  giving  of  adequate
      security. It is the owner (importer) who has to fill in  the  Form  ST
      18A. It is the owner who is entitled to  seek  release  under  Section
      78(4) on giving security. It is the owner who is entitled  to  hearing
      under Section 78(5) and, therefore, the expression  "person  in-charge
      of the goods" under Section 78(5) would include the  owner.  Moreover,
      under Section 78(2) the words used are "person in-charge of a  vehicle
      or carrier of goods in movement" whereas the words  in  Section  78(5)
      which comes after sub-section (4) refers to "person in-charge  of  the
      goods". The words "in movement" do not find place in Section 78(5) and
      therefore the expression "person in charge  of  goods"  under  Section
      78(5) was wider than the expression "person  in  charge  of  goods  in
      movement" under Section 78(2)(a). Consequently, the expression "person
      in-charge  of  the  goods"  under  Section  78(5)  who  is  given   an
      opportunity of being heard in the enquiry would include the "owner  of
      the goods".


                 Therefore, in our view, the judgment of this Court  in  the
      case of    M/s.Guljag Industries (supra) would squarely apply  to  the
      facts of the present case. 
In fact, our  view  in  the  case  of  M/s.
      Guljag Industries (supra) finds support from  the  amendment  made  in
      Section 78(5) vide Act No.7 of 2002  w.e.f.  22.3.2002  by  which  the
      expression
"person in-charge of the goods" under the old Section 78(5)
  is substituted by the words "the  owner  of  the  goods  or  a  person authorized in writing by such owner or person in-charge of the goods".
      It is once again emphasized that Act No.7 of 2002 is  an  exercise  in
      substitution.    Therefore,  the  Legislature  seeks  to  clarify  the
      expression "person in-charge of the goods" occurring in Section  78(5)
      as it stood earlier by Act No.7 of 2002. In fact, it is interesting to
      note that even under Section 22A(3)  of  the  1954  Act,  penalty  was
      leviable on the "owner of the  goods"  for  possession  of  goods  not
      covered by the  Goods  Vehicle  Record  [including  Declaration  under
      Section 22A(3)].”



5.          In view of the aforesaid decision of this Court,  the  judgment
and order passed by the High Court cannot be sustained and deserves  to  be
set aside.

6.          Therefore, we allow this appeal, set aside the order passed  by
the High Court and restore the order passed  by  the  Assistant  Commercial
Taxes Officer, Bhiwadi.

            Ordered accordingly.



                                                   .......................J.
                                                               (H. L. DATTU)




                                                   .......................J.
                                                               (M. Y. EQBAL)

NEW DELHI;
SEPTEMBER 13, 2013

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.